1. A will which is complete and regular on the face of it (ie where all the prescribed formalities have been complied with) is presumed to be valid until the contrary has been proved.
2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).
3. A will may be invalid inter alia –
3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or
3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.
4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.
5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.
6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.
7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.
Friday, 28 September 2007
Wednesday, 19 September 2007
A Pledge to Our Clients
.
.
# We Seek to Understand the Big Picture
We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.
# We Seek to Establish our Client’s Expectations and Then Exceed Them
We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.
# We Seek Always to Follow Through on our Commitments
We set reasonable deadlines and do our best to stick to them.
# We Return Telephone Calls as Promptly as Possible
Our policy is to return all calls as soon as possible but on the same day as received, at the latest.
# We Will Communicate with You in the Manner You Prefer
We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.
# We will not “Over-lawyer”
We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.
# We Strive Not to Send Surprise Invoices
We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.
# We Appreciate Your Business
We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.
This blog is based on original material and material from the website of the American Bar Association © 2003-2007
.
# We Seek to Understand the Big Picture
We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.
# We Seek to Establish our Client’s Expectations and Then Exceed Them
We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.
# We Seek Always to Follow Through on our Commitments
We set reasonable deadlines and do our best to stick to them.
# We Return Telephone Calls as Promptly as Possible
Our policy is to return all calls as soon as possible but on the same day as received, at the latest.
# We Will Communicate with You in the Manner You Prefer
We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.
# We will not “Over-lawyer”
We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.
# We Strive Not to Send Surprise Invoices
We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.
# We Appreciate Your Business
We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.
This blog is based on original material and material from the website of the American Bar Association © 2003-2007
Wednesday, 12 September 2007
HOW TO GET THE BEST OUT OF YOUR ATTORNEY
Often legal clients are disillusioned with their attorneys. Sometimes this disillusionment may be justified. But just as often the lack of satisfactory service from the attorney is often due to the ignorance or inability of the client. A client needs to know how to use the lawyer's services to get the best from him.
The First Consultation
When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:
1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.
How to Communicate Effectively with your Attorney:
1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.
You and Your Lawyer Are A Team
1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.
How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.
Avoiding Fee Disputes
1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.
An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.
If it's Justified – Say Thank You !
Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.
Footnotes
1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: http://www.clasbc.net/ & http://www2.povnet.org/clas
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail: Trout@BrettTrout.com; Website: http://www.bretttrout.com
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website: www.ezinearticles.com.
2. SAMPLE INDEX OF DOCUMENTS
DATE DESCRIPTION Nr.
20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3
3.See for instance "Non-litigious fees" on the website of the Cape Law Society: http://www.capelawsoc.law.za/
The First Consultation
When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:
1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.
How to Communicate Effectively with your Attorney:
1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.
You and Your Lawyer Are A Team
1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.
How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.
Avoiding Fee Disputes
1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.
An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.
If it's Justified – Say Thank You !
Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.
Footnotes
1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: http://www.clasbc.net/ & http://www2.povnet.org/clas
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail: Trout@BrettTrout.com; Website: http://www.bretttrout.com
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website: www.ezinearticles.com.
2. SAMPLE INDEX OF DOCUMENTS
DATE DESCRIPTION Nr.
20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3
3.See for instance "Non-litigious fees" on the website of the Cape Law Society: http://www.capelawsoc.law.za/
Thursday, 28 June 2007
Transport for Overtime Workers
A. THE QUESTION:
Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.
B. RELEVANT LEGAL PROVISIONS
Basic Conditions of Employment Act 75 of 1997:
1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.
2. The full text of section 17(1) & (2) reads:
"17 Night work
(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."
3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.
4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.
5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.
Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)
6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.
7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.
8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.
Bargaining Council Agreements and Minister of Labour Variations
9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.
10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.
11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.
C. CONCLUSION
The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.
Roland Darroll
Thursday, 28 June 2007
Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.
B. RELEVANT LEGAL PROVISIONS
Basic Conditions of Employment Act 75 of 1997:
1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.
2. The full text of section 17(1) & (2) reads:
"17 Night work
(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."
3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.
4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.
5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.
Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)
6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.
7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.
8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.
Bargaining Council Agreements and Minister of Labour Variations
9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.
10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.
11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.
C. CONCLUSION
The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.
Roland Darroll
Thursday, 28 June 2007
Monday, 25 June 2007
UNILATERAL CHANGES IN EMPLOYMENT CONDITIONS
WHEN A BUSINESS IS SOLD AND THE BUYING COMPANY UNILATERALLY
WANTS THE STAFF TO SIGN UNDERTAKINGS
1. THE BASIC ISSUE
1.1 A multinational company bought the business of Darrolls Attorneys' clients. The multinational then now required the staff of the purchased business to sign certain undertakings.
1.2 The questions that arise are the following:
1.2.1 is the staff obliged to sign such undertakings ? If so,
1.2.2 are the undertakings reasonable ?
2. UNILATERAL CHANGES TO TERMS OF EMPLOYMENT
2.1 The situation with regard to unilateral changes of terms of employment under the current Labour Relations Act 66 of 1995 ("LRA") is uncertain. Unilateral changes are only mentioned once in the Act, and then only in the context of the right to strike. It seems, therefore, that unlike the common law, the LRA itself places no limitation on the employer's right to vary their employees' terms and conditions of employment.
2.2 The precise nature of a unilateral change to terms and conditions of service has also received relatively little judicial attention. A court has held that employees 'do not have a vested right to preserve their working conditions completely unchanged as from the moment they first begin to work'. It is only if the changes are 'so dramatic as to amount to a requirement that the employees undertake to do an entirely different job' that they could refuse an instruction to abide by the new working rules or claim that the employer has breached their contracts by introducing the new working practice.
2.3 The law therefore clearly permits change in the workplace. It assumes that companies have to adapt to changing circumstances and that employees must be prepared to accept change within certain parameters, ie:
2.3.1 consultation. The relevant provisions of the LRA should be adhered to in this regard, ie management needs to inform staff about its intentions, provide reasons and other relevant information justifying the change, invite representations from staff and listen to and respond to staff members input;
2.3.2 agreed terms of employment, unlike non-drastic working practice changes, cannot be altered unilaterally by the employer without sound commercial reasons. This means that management has to negotiate and agree with employees before previously agreed terms can be changed.
2.4 Failing agreement, management has some powerful means available to try and enforce consent, including locking out employees who resist or retrenching those who refuse to agree. The latter option requires great caution on the part of the employer because of certain relevant legal constraints.
2.5 If the change does not involve agreed terms of employment but instead practices or rules that management had previously introduced unilaterally (eg no-smoking rules or performance standards) management does not require employees' consent to implement and enforce the change, but is required to consult with affected staff first.
2.6 Section 64(4) of the LRA suggests that the only remedy available to employees when there is a dispute over a unilateral variation of terms, is to strike. However a unilateral variation of employment terms is nevertheless a breach of contract under the common law. Employees therefore retain their right to accept the employer's 'repudiation' of their contract and sue for damages or alternatively to hold the employer to the original contract.
2.7 The case law provides no clear answer to the question as to whether an employer may dismiss employees who refuse to comply with changes to their employment contract. This is partly because the answer depends on the facts of each particular case. It is therefore difficult for the legal adviser to indicate any one course of action with confidence. That being so it might well be that employees should seek to agree to as much as they consider to be reasonable and provided that the employer consults and motivates the changes first.
2.8 It needs to be said that if employees play too hardball with an employer who has a genuine 'commercial rationale' for the variations, they run the risk (depending on the court's view of the facts) of retrenchment, alternatively being dismissed on the basis of misconduct (insubordination). Care should therefore be taken that, while remaining firm on their rights, employees do not expose themselves to the point where the employer considers that it would be justified in trying to dismiss them.
3. LABOUR LAW PROVISIONS REGARDING TRANSFERS OF BUSINESSES
3.1 Section 197(2) of the LRA provides that, if a transfer of a business takes place, the new employer is automatically substituted in the place of the old in respect of all employment contracts and the rights between the old employer and an employee at the time of the transfer continue as if they had been rights between the new employer and that employee.
3.2 Section 197(3) of the LRA goes on to say that the new employer complies with subsection (2) if it employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.
4. ARE THE UNDERTAKINGS IN THIS CASE CHANGES IN TERMS OR MERELY BUSINESS PRACTICES AND ARE THEY REASONABLE ?
On the assumption that, because of the grey area in the law as to the rights of employees in the face of an employer's unilateral change in their terms and conditions of service, the employees do decide to sign certain undertakings where they had not been required to do so before, the question then arises as to whether they should sign all or only certain of the undertakings. In order to decide this one will have to look at each undertaking in turn.
5. CONCLUSION – SUGGESTED PROCEDURE
5.1 In the first place, the employees should meet among themselves in order to establish a common policy towards the documents.
5.2 Then, employees should insist that the new Employer call a meeting to consult with them and motivate the reasons why they should sign these two documents.
5.3 Thereafter new documentation should be drawn up along the lines agreed, so that it is in a form that the employees can sign.
5.4 By following the above procedure, the employees will be able to protect themselves as far as changes to their terms of employment are concerned (which they can refuse to accept, unless there is a 'commercial rationale') and changes to working practices (which they will have to accept unless they are unreasonable).
5.5 In this way employees will obtain the best possible deal while exposing their jobs to minimum risk.
Roland Darroll
Darrolls Attorneys
Newlands, Wednesday, 20 June 2007
WANTS THE STAFF TO SIGN UNDERTAKINGS
1. THE BASIC ISSUE
1.1 A multinational company bought the business of Darrolls Attorneys' clients. The multinational then now required the staff of the purchased business to sign certain undertakings.
1.2 The questions that arise are the following:
1.2.1 is the staff obliged to sign such undertakings ? If so,
1.2.2 are the undertakings reasonable ?
2. UNILATERAL CHANGES TO TERMS OF EMPLOYMENT
2.1 The situation with regard to unilateral changes of terms of employment under the current Labour Relations Act 66 of 1995 ("LRA") is uncertain. Unilateral changes are only mentioned once in the Act, and then only in the context of the right to strike. It seems, therefore, that unlike the common law, the LRA itself places no limitation on the employer's right to vary their employees' terms and conditions of employment.
2.2 The precise nature of a unilateral change to terms and conditions of service has also received relatively little judicial attention. A court has held that employees 'do not have a vested right to preserve their working conditions completely unchanged as from the moment they first begin to work'. It is only if the changes are 'so dramatic as to amount to a requirement that the employees undertake to do an entirely different job' that they could refuse an instruction to abide by the new working rules or claim that the employer has breached their contracts by introducing the new working practice.
2.3 The law therefore clearly permits change in the workplace. It assumes that companies have to adapt to changing circumstances and that employees must be prepared to accept change within certain parameters, ie:
2.3.1 consultation. The relevant provisions of the LRA should be adhered to in this regard, ie management needs to inform staff about its intentions, provide reasons and other relevant information justifying the change, invite representations from staff and listen to and respond to staff members input;
2.3.2 agreed terms of employment, unlike non-drastic working practice changes, cannot be altered unilaterally by the employer without sound commercial reasons. This means that management has to negotiate and agree with employees before previously agreed terms can be changed.
2.4 Failing agreement, management has some powerful means available to try and enforce consent, including locking out employees who resist or retrenching those who refuse to agree. The latter option requires great caution on the part of the employer because of certain relevant legal constraints.
2.5 If the change does not involve agreed terms of employment but instead practices or rules that management had previously introduced unilaterally (eg no-smoking rules or performance standards) management does not require employees' consent to implement and enforce the change, but is required to consult with affected staff first.
2.6 Section 64(4) of the LRA suggests that the only remedy available to employees when there is a dispute over a unilateral variation of terms, is to strike. However a unilateral variation of employment terms is nevertheless a breach of contract under the common law. Employees therefore retain their right to accept the employer's 'repudiation' of their contract and sue for damages or alternatively to hold the employer to the original contract.
2.7 The case law provides no clear answer to the question as to whether an employer may dismiss employees who refuse to comply with changes to their employment contract. This is partly because the answer depends on the facts of each particular case. It is therefore difficult for the legal adviser to indicate any one course of action with confidence. That being so it might well be that employees should seek to agree to as much as they consider to be reasonable and provided that the employer consults and motivates the changes first.
2.8 It needs to be said that if employees play too hardball with an employer who has a genuine 'commercial rationale' for the variations, they run the risk (depending on the court's view of the facts) of retrenchment, alternatively being dismissed on the basis of misconduct (insubordination). Care should therefore be taken that, while remaining firm on their rights, employees do not expose themselves to the point where the employer considers that it would be justified in trying to dismiss them.
3. LABOUR LAW PROVISIONS REGARDING TRANSFERS OF BUSINESSES
3.1 Section 197(2) of the LRA provides that, if a transfer of a business takes place, the new employer is automatically substituted in the place of the old in respect of all employment contracts and the rights between the old employer and an employee at the time of the transfer continue as if they had been rights between the new employer and that employee.
3.2 Section 197(3) of the LRA goes on to say that the new employer complies with subsection (2) if it employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.
4. ARE THE UNDERTAKINGS IN THIS CASE CHANGES IN TERMS OR MERELY BUSINESS PRACTICES AND ARE THEY REASONABLE ?
On the assumption that, because of the grey area in the law as to the rights of employees in the face of an employer's unilateral change in their terms and conditions of service, the employees do decide to sign certain undertakings where they had not been required to do so before, the question then arises as to whether they should sign all or only certain of the undertakings. In order to decide this one will have to look at each undertaking in turn.
5. CONCLUSION – SUGGESTED PROCEDURE
5.1 In the first place, the employees should meet among themselves in order to establish a common policy towards the documents.
5.2 Then, employees should insist that the new Employer call a meeting to consult with them and motivate the reasons why they should sign these two documents.
5.3 Thereafter new documentation should be drawn up along the lines agreed, so that it is in a form that the employees can sign.
5.4 By following the above procedure, the employees will be able to protect themselves as far as changes to their terms of employment are concerned (which they can refuse to accept, unless there is a 'commercial rationale') and changes to working practices (which they will have to accept unless they are unreasonable).
5.5 In this way employees will obtain the best possible deal while exposing their jobs to minimum risk.
Roland Darroll
Darrolls Attorneys
Newlands, Wednesday, 20 June 2007
Wednesday, 30 May 2007
THE LEGAL RIGHTS OF UNMARRIED PERSONS LIVING TOGETHER IN A PERMANENT RELATIONSHIP
This blog deals with the South African law relating to 'a stable, monogamous relationship where a couple who do not wish to, or are not allowed to, get married, lives together as spouses". The definition includes people of the same sex living together in a stable, exclusive relationship.
1. Property
The general rule of law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has lasted. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family law consequences flow automatically from their relationship.
However, there are a number of legal actions that can possibly be used to create an enforceable legal right by one partner against the other:
• One is a remedy based on "unjust enrichment" where a party has been enriched at the expense of another without that other having received due value in exchange;
• Another remedy uses the concept of "universal partnership". It has been held that a universal partnership can exist between cohabitants if the requirements of such a partnership are present. These requirements are that • the aim must be to make a profit (it is sufficient in the case of cohabitation if the objective is to accumulate an appreciating joint estate); • both parties must contribute; • it must operate the benefit of both; and • the contract must be legitimate. It has also been held that a universal partnership can arise from an express or a tacit agreement. The consequences of such a partnership are that the partnership property is owned jointly;
• Finally, there may be an express or tacit cohabitation agreement. Given the presence of certain legal difficulties in this fast developing area of our law, it is highly advisable for the couple to commit their agreement to writing and sign it, so that there cannot be any doubt as to its terms.
In the absence of a universal partnership, private property acquired before cohabitation belongs to the partner separately. If there is no universal partnership, property bought by one of the parties during the relationship will belong to the purchaser.
2. Maintenance and loss of support
There is no reciprocal duty of support in our law between cohabiting parties either during their relationship or after its termination by death or otherwise. Neither party may bind the other in contract for household necessaries, unless the one has appointed the other as his or her agent. If the couple hold themselves out to be husband and wife, they will be bound by each other's contracts for household necessaries as if they were legally married because they will not be allowed to say that there was no contract of agency between them (estoppel).
There is also therefore no action for damages for loss of support against a third party who unlawfully causes the death of a cohabitant who has been supporting the surviving partner. This is so even if the deceased had a contractual obligation to support the other, because such an action only lies if the duty to support exists by operation of law. This is the case where compensation for occupational injury or disease is claimed under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. A cohabitant has been included in the definition of 'dependant of an employee' provided that the employee does not also have a legal spouse.
3. The Common Home
A cohabitant who has an ownership interest in the home has a special right to occupy it. Co-owners are both entitled to share in the profits from the home and are also liable to share in the expenses and losses which the running and upkeep of the property involves. Each will be jointly and severally liable for the whole amount of the bond. If one of the cohabitees pays more than his share of the expenses, the difference can be recovered from the other.
Joint owners both have the right to occupy the home and therefore neither can evict or exclude the other from control of such property or compel the other to sell the property after termination of the relationship. Even if they have equal shares, the court will have to settle the matter if the parties cannot agree. The court may order that the home be awarded to one of the partners, subject to the payment of compensation to the other. One of the partners, however, can sell his share in the property to a third party without the other's permission if the cohabitees have not formed a partnership, expressly or impliedly.
If one of the co-owners dies, his share in the property will form part of his estate. The deceased may bequeath his share to the partner by means of a valid will. If the deceased dies intestate or bequeaths his share to someone else, the cohabiting partner will have no claim to the deceased's share in the property and will become co-owner along with the beneficiary. The surviving partner's remedy is to apply to court for an order that the home be awarded to him or her.
4. Children
A child born of a cohabitation relationship is illegitimate. The mother alone has parental power over it and even on her death, the father has no inherent right of guardianship or custody, although this can be remedied in appropriate cases by a court application.
Sexual orientation and marital status may no longer legally play a role when determining the best interests of a child with regard to custody or access of a parent to his/her children.
5. Succession
A cohabitant may leave his or her estate to the other partner even to the exclusion of any spouse to whom he may be married, although the latter will have the right to claim maintenance from the deceased. There is no right of intestate succession between cohabitants.
6. Insurance
Either cohabitant may name the other as a beneficiary under a life insurance policy, provided such nomination is clear and specific. For instance, the cohabitant will not be regarded as a member of the insured's 'family'.
7. Insolvency
If one of the partners becomes insolvent, the estate of both partners vests in the trustee in the same way as that of a married couple.
8. Other Consequences
8.1 Change of name: a cohabitant wishing to change his or her surname to that of the partner must approach the Director-General of Home Affairs for permission to do so, in the same way as any other person.
8.2 Evidence: Whereas a spouse cannot be compelled in civil or criminal proceedings to disclose communications made to him or her by the other spouse, such protection does not extend to cohabitants.
8.3 Legal actions: The matrimonial property system of community of property does not ensue from cohabitation. This means that they may sue each other for patrimonial and non-patrimonial damages.
8.4 Medical aid: s 24(2)(e) of the Medical Schemes Act 131 of 1998 requires medical aid schemes to show upon their registration that they will not arbitrarily discriminate against people on various grounds including marital status and sexual orientation.
8.5 Pension Funds: a cohabitant will enjoy the same rights as a spouse by virtue of the definition of spouse being widened to include a member of " a union of two adults, whether of the same or the opposite sex, in respect of whom the Board is satisfied that the parties cohabit as if married".
8.6 Immigration permits: the special provision made for the authorisation of the issue of an immigration permit to the spouse of a person who is permanently resident in South Africa now includes a party to a life partnership.
Roland Darroll
Cape Town
Wednesday, 30 May 2007
1. Property
The general rule of law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has lasted. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family law consequences flow automatically from their relationship.
However, there are a number of legal actions that can possibly be used to create an enforceable legal right by one partner against the other:
• One is a remedy based on "unjust enrichment" where a party has been enriched at the expense of another without that other having received due value in exchange;
• Another remedy uses the concept of "universal partnership". It has been held that a universal partnership can exist between cohabitants if the requirements of such a partnership are present. These requirements are that • the aim must be to make a profit (it is sufficient in the case of cohabitation if the objective is to accumulate an appreciating joint estate); • both parties must contribute; • it must operate the benefit of both; and • the contract must be legitimate. It has also been held that a universal partnership can arise from an express or a tacit agreement. The consequences of such a partnership are that the partnership property is owned jointly;
• Finally, there may be an express or tacit cohabitation agreement. Given the presence of certain legal difficulties in this fast developing area of our law, it is highly advisable for the couple to commit their agreement to writing and sign it, so that there cannot be any doubt as to its terms.
In the absence of a universal partnership, private property acquired before cohabitation belongs to the partner separately. If there is no universal partnership, property bought by one of the parties during the relationship will belong to the purchaser.
2. Maintenance and loss of support
There is no reciprocal duty of support in our law between cohabiting parties either during their relationship or after its termination by death or otherwise. Neither party may bind the other in contract for household necessaries, unless the one has appointed the other as his or her agent. If the couple hold themselves out to be husband and wife, they will be bound by each other's contracts for household necessaries as if they were legally married because they will not be allowed to say that there was no contract of agency between them (estoppel).
There is also therefore no action for damages for loss of support against a third party who unlawfully causes the death of a cohabitant who has been supporting the surviving partner. This is so even if the deceased had a contractual obligation to support the other, because such an action only lies if the duty to support exists by operation of law. This is the case where compensation for occupational injury or disease is claimed under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. A cohabitant has been included in the definition of 'dependant of an employee' provided that the employee does not also have a legal spouse.
3. The Common Home
A cohabitant who has an ownership interest in the home has a special right to occupy it. Co-owners are both entitled to share in the profits from the home and are also liable to share in the expenses and losses which the running and upkeep of the property involves. Each will be jointly and severally liable for the whole amount of the bond. If one of the cohabitees pays more than his share of the expenses, the difference can be recovered from the other.
Joint owners both have the right to occupy the home and therefore neither can evict or exclude the other from control of such property or compel the other to sell the property after termination of the relationship. Even if they have equal shares, the court will have to settle the matter if the parties cannot agree. The court may order that the home be awarded to one of the partners, subject to the payment of compensation to the other. One of the partners, however, can sell his share in the property to a third party without the other's permission if the cohabitees have not formed a partnership, expressly or impliedly.
If one of the co-owners dies, his share in the property will form part of his estate. The deceased may bequeath his share to the partner by means of a valid will. If the deceased dies intestate or bequeaths his share to someone else, the cohabiting partner will have no claim to the deceased's share in the property and will become co-owner along with the beneficiary. The surviving partner's remedy is to apply to court for an order that the home be awarded to him or her.
4. Children
A child born of a cohabitation relationship is illegitimate. The mother alone has parental power over it and even on her death, the father has no inherent right of guardianship or custody, although this can be remedied in appropriate cases by a court application.
Sexual orientation and marital status may no longer legally play a role when determining the best interests of a child with regard to custody or access of a parent to his/her children.
5. Succession
A cohabitant may leave his or her estate to the other partner even to the exclusion of any spouse to whom he may be married, although the latter will have the right to claim maintenance from the deceased. There is no right of intestate succession between cohabitants.
6. Insurance
Either cohabitant may name the other as a beneficiary under a life insurance policy, provided such nomination is clear and specific. For instance, the cohabitant will not be regarded as a member of the insured's 'family'.
7. Insolvency
If one of the partners becomes insolvent, the estate of both partners vests in the trustee in the same way as that of a married couple.
8. Other Consequences
8.1 Change of name: a cohabitant wishing to change his or her surname to that of the partner must approach the Director-General of Home Affairs for permission to do so, in the same way as any other person.
8.2 Evidence: Whereas a spouse cannot be compelled in civil or criminal proceedings to disclose communications made to him or her by the other spouse, such protection does not extend to cohabitants.
8.3 Legal actions: The matrimonial property system of community of property does not ensue from cohabitation. This means that they may sue each other for patrimonial and non-patrimonial damages.
8.4 Medical aid: s 24(2)(e) of the Medical Schemes Act 131 of 1998 requires medical aid schemes to show upon their registration that they will not arbitrarily discriminate against people on various grounds including marital status and sexual orientation.
8.5 Pension Funds: a cohabitant will enjoy the same rights as a spouse by virtue of the definition of spouse being widened to include a member of " a union of two adults, whether of the same or the opposite sex, in respect of whom the Board is satisfied that the parties cohabit as if married".
8.6 Immigration permits: the special provision made for the authorisation of the issue of an immigration permit to the spouse of a person who is permanently resident in South Africa now includes a party to a life partnership.
Roland Darroll
Cape Town
Wednesday, 30 May 2007
Friday, 09 February 2007
The following article appears in the January/February 2007 edition of "De Rebus" the national journal of the Law Society of South Africa:
Payment provisions for disputed sectional title debts when wishing to sell
By Roland Darroll
A sectional title unitholder wants to sell his unit. The body corporate won’t issue a clearance certificate. It says he owes it moneys due. He says he does not, but without that certificate the transfer is a non-starter.
Most, if not all, unitholders pay under protest, get the clearance certificate, and then claim the payment back (the ‘protest payment’ route).
However, the relevant section, s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, provides another way –
‘The registrar shall not register a transfer of a unit or … undivided share …, unless there is produced … -
(a) a conveyancer’s certificate confirming that as at date of registration-
(i) (aa) … [the] body corporate … has certified that all moneys due to the body corporate by the transferor in respect of the … unit have been paid, or that provision has been made to the satisfaction of the body corporate for … payment…;’ (my emphasis)
The unitholder can therefore provide for payment (the ‘payment provision’ route) rather than actually pay and reclaim.
Christo Botha (Statutory Interpretation, Juta, Cape Town, 4th ed, 2005, at 69), points out ‘legislation should generally be interpreted [so]that no word or sentence is … redundant or superfluous’.
Payment provision could be made by, say, providing some sort of conditional guarantee or depositing it into the trust account of an attorney, accompanied by his undertaking to pay the body corporate the amount eventually found, or agreed, to be due.
What if the provision does not satisfy the body corporate? Section 15B(3)(a) (i)(aa) ensures that unitholders settle their outstanding commitments before selling their units. It assists the financial soundness of a sectional titles scheme. However, bodies corporate can be mistaken or unreasonable, like everybody else.
The body corporate’s discretion as to whether it should be satisfied with the unitholder’s payment provision is not unfettered. When a statute requires an act to be ‘to the satisfaction’ of some entity or authority, it confers a discretion. Where the payment provision is objectively reasonable and the unitholder’s dispute is bona fide, the law obliges the body corporate to be satisfied.
‘A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular …’
[Sharp v Wakefield 1891 AC 173, at 179; Casser & Casser v Bellville Municipality 1958 (3) SA 318(C) at 325 and Pretoria North Town Council v A. I. Electric Ice-Cream Factory (Pty.) Ltd., 1953 (3) SA 1 (AD) at 12.]
Apart from being illogical, clumsy, costly and time-consuming, protest payments are unnecessarily litigious. Public policy eschews unnecessary litigation. In Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), the Constitutional Court, per Madala J at 150 [75], commended inter alia the following legal principles:
‘(i)[to] avoid opening … the floodgates to unnecessary litigation;
(ii) to ration scarce judicial resources by applying them to real rather than hypothetical disputes;
(iii to place limits on the exercise of judicial power by precluding rulings … not needed to resolve disputes;… ’
There is also a duty on practitioners to avoid useless litigation, as Lewis on Legal Ethics stresses (Juta, 1982, at 106). Throughout the case law it is assumed axiomatically that unnecessary litigation is to be avoided (eg, Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 269 [15]; South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) at 592 [8] referring to Ebrahim v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1946 TPD 226 at 236).
Where practitioners advise their clients to make protest payments, they could even be violating this duty. Litigation is inevitably needed to recover such payments.
Litigation may, of course, be necessary either way. If the parties are not able to settle their dispute, either the unitholder will need to sue the body corporate (after a protest payment), or one of the parties will have to sue the other (after a payment provision).
There could be important differences, though. The matter will more likely be settled where the funds are held by a third party rather than a party itself, possession of the disputed funds being the self-encouraging factor that it is.
There is also the question of the onus of proof. Schwikkard & van der Merwe, Principles of Evidence, 2nd ed, Cape Town, Juta, 2002, at 538 point out that,
‘the guiding principle … is that the person who makes a positive assertion is generally called upon to prove it, with the effect that the burden of proof lies generally on the person who seeks to alter the status quo’.
If the unitholder ‘protest pays’, he will be seeking to alter the status quo. The onus will be on him to show that he is entitled to the return of the disputed amount. On the other hand, if the unitholder makes a payment provision and the body corporate sues for the amount it considers due, the onus is on the body corporate.
Zeffert et al, The South African Law of Evidence, Lexis Nexis Butterworths, 2003, chap 3 (pages 45 – 92) set out what they call ‘a sustained analytic questioning of almost everything’ about the onus of proof. They call the law in this area ‘mysterious, enigmatic, elusive…’ (page 46) ‘where obfuscation has been the norm’(page 59). Therefore Schwikkard & van der Merwe’s assertion may not hold. It is beyond this article to enter these mysteries, but if Schwikkard & van der Merwe’s assertion applies, whether the unitholder ‘protests’ or ‘provides’ could be crucial in deciding on where the onus lies.
For all the above reasons, unitholders obstructed from selling their units by monetary disputes with their bodies corporate should not be cowed into protest paying. Payment provision is an equally valid and otherwise better route. Bodies corporate cannot refuse a clearance certificate just because the unitholder takes the latter course. The unit seller will be in a much better position to resolve the remaining ‘moneys due’ dispute with the body corporate – without being blocked from passing transfer to the purchaser of his unit.
Roland Darroll BA(Unisa) BA LLB (UCT) is an attorney in Cape Town.
Payment provisions for disputed sectional title debts when wishing to sell
By Roland Darroll
A sectional title unitholder wants to sell his unit. The body corporate won’t issue a clearance certificate. It says he owes it moneys due. He says he does not, but without that certificate the transfer is a non-starter.
Most, if not all, unitholders pay under protest, get the clearance certificate, and then claim the payment back (the ‘protest payment’ route).
However, the relevant section, s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, provides another way –
‘The registrar shall not register a transfer of a unit or … undivided share …, unless there is produced … -
(a) a conveyancer’s certificate confirming that as at date of registration-
(i) (aa) … [the] body corporate … has certified that all moneys due to the body corporate by the transferor in respect of the … unit have been paid, or that provision has been made to the satisfaction of the body corporate for … payment…;’ (my emphasis)
The unitholder can therefore provide for payment (the ‘payment provision’ route) rather than actually pay and reclaim.
Christo Botha (Statutory Interpretation, Juta, Cape Town, 4th ed, 2005, at 69), points out ‘legislation should generally be interpreted [so]that no word or sentence is … redundant or superfluous’.
Payment provision could be made by, say, providing some sort of conditional guarantee or depositing it into the trust account of an attorney, accompanied by his undertaking to pay the body corporate the amount eventually found, or agreed, to be due.
What if the provision does not satisfy the body corporate? Section 15B(3)(a) (i)(aa) ensures that unitholders settle their outstanding commitments before selling their units. It assists the financial soundness of a sectional titles scheme. However, bodies corporate can be mistaken or unreasonable, like everybody else.
The body corporate’s discretion as to whether it should be satisfied with the unitholder’s payment provision is not unfettered. When a statute requires an act to be ‘to the satisfaction’ of some entity or authority, it confers a discretion. Where the payment provision is objectively reasonable and the unitholder’s dispute is bona fide, the law obliges the body corporate to be satisfied.
‘A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular …’
[Sharp v Wakefield 1891 AC 173, at 179; Casser & Casser v Bellville Municipality 1958 (3) SA 318(C) at 325 and Pretoria North Town Council v A. I. Electric Ice-Cream Factory (Pty.) Ltd., 1953 (3) SA 1 (AD) at 12.]
Apart from being illogical, clumsy, costly and time-consuming, protest payments are unnecessarily litigious. Public policy eschews unnecessary litigation. In Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), the Constitutional Court, per Madala J at 150 [75], commended inter alia the following legal principles:
‘(i)[to] avoid opening … the floodgates to unnecessary litigation;
(ii) to ration scarce judicial resources by applying them to real rather than hypothetical disputes;
(iii to place limits on the exercise of judicial power by precluding rulings … not needed to resolve disputes;… ’
There is also a duty on practitioners to avoid useless litigation, as Lewis on Legal Ethics stresses (Juta, 1982, at 106). Throughout the case law it is assumed axiomatically that unnecessary litigation is to be avoided (eg, Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 269 [15]; South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) at 592 [8] referring to Ebrahim v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1946 TPD 226 at 236).
Where practitioners advise their clients to make protest payments, they could even be violating this duty. Litigation is inevitably needed to recover such payments.
Litigation may, of course, be necessary either way. If the parties are not able to settle their dispute, either the unitholder will need to sue the body corporate (after a protest payment), or one of the parties will have to sue the other (after a payment provision).
There could be important differences, though. The matter will more likely be settled where the funds are held by a third party rather than a party itself, possession of the disputed funds being the self-encouraging factor that it is.
There is also the question of the onus of proof. Schwikkard & van der Merwe, Principles of Evidence, 2nd ed, Cape Town, Juta, 2002, at 538 point out that,
‘the guiding principle … is that the person who makes a positive assertion is generally called upon to prove it, with the effect that the burden of proof lies generally on the person who seeks to alter the status quo’.
If the unitholder ‘protest pays’, he will be seeking to alter the status quo. The onus will be on him to show that he is entitled to the return of the disputed amount. On the other hand, if the unitholder makes a payment provision and the body corporate sues for the amount it considers due, the onus is on the body corporate.
Zeffert et al, The South African Law of Evidence, Lexis Nexis Butterworths, 2003, chap 3 (pages 45 – 92) set out what they call ‘a sustained analytic questioning of almost everything’ about the onus of proof. They call the law in this area ‘mysterious, enigmatic, elusive…’ (page 46) ‘where obfuscation has been the norm’(page 59). Therefore Schwikkard & van der Merwe’s assertion may not hold. It is beyond this article to enter these mysteries, but if Schwikkard & van der Merwe’s assertion applies, whether the unitholder ‘protests’ or ‘provides’ could be crucial in deciding on where the onus lies.
For all the above reasons, unitholders obstructed from selling their units by monetary disputes with their bodies corporate should not be cowed into protest paying. Payment provision is an equally valid and otherwise better route. Bodies corporate cannot refuse a clearance certificate just because the unitholder takes the latter course. The unit seller will be in a much better position to resolve the remaining ‘moneys due’ dispute with the body corporate – without being blocked from passing transfer to the purchaser of his unit.
Roland Darroll BA(Unisa) BA LLB (UCT) is an attorney in Cape Town.
Monday, 29 January 2007
Sectional Titles - the uppity owner
One problem with sectional titles schemes is that the law is not clear and authoritative when it comes to what the body corporate should or can do with an unco-operative owner. I have a current case where the owner in question is persisting in building a structure on an area abutting on his unit where it is by no means certain that it is for his exclusive use, even though he is the only person that has physical access to the area concerned. To be able to claim the right of exclusive use in any area, the unitholder must either have received it by virtue of a notarial cession or the rules must provide that particular area is for the exclusive use of the unitholder concerned.
The strategy of our uppity unitholder is to quietly and intermittently carry on adding to the unauthorised structure until it slowly becomes a fait accompli, something already done and beyond alteration. Numerous warnings have been issued by the body corporate, but to no avail. What is the remedy of the body corporate, in other words the other owners in the complex ?
One thing one can try is to persuade the building inspector of your local authority to issue a cease and desist order in terms of their bylaws. This will cost the body corporate nothing and should have the desired effect, providing you can get your local authority to co-operate.
Another possibility is to apply for what is called a mandatory interdict that, if granted by the court, will consist of an order that the recalcitrant unitholder not only cease further construction but also dismantle what has already been constructed without due authority. A problem is that one needs to show prejudice and the lack of an alternative remedy in order to succeed in obtaining an interdict of this kind. In certain circumstances this could be difficult for the body corporate to show: the additional construction might be ugly but does it really prejudice anyone ?
The other alternative is to resort to arbitration in terms of Management Rule 71 under the Sectional Titles Act 95 of 1986. This has plusses and minuses. One plus is its relative speed when compared to the courts. One authority [Prof C G v d Merwe, author of Sectional Titles, Butterworths, looseleaf (not the English equivalent of Loslyf), updated to 28 February 2006, p 9-19] maintains that cost-effectiveness is another. I am not so sure about that. The state pays for the judge in the courts – the parties have to pay for the arbitrator in arbitration and this can also be expensive.
The learned author (we lawyers use these old-fashioned courtesies towards each other) also says another plus is that arbitration "offers better safeguards against procedural irregulations [sic – I presume he means 'irregularities'] by virtue of the provisions of the Arbitration Act 42 of 1965, that will apply to any arbitration proceedings in terms of the Sectional Titles Act".
What should also be considered is an amendment to the conduct rules imposing fines on unitholders who break those rules and the power to request an amount as security for future transgressions. This is a speedy and inexpensive remedy but the rule must provide built-in safeguards to ensure that it is not abused, eg an enquiry to establish the breach of the rules before the sanction is imposed.
In any event: a word of advice to potential sectional titles unit buyers – read the "management" and "conduct" rules first. That will tell you what kind of a situation you are moving into.
The strategy of our uppity unitholder is to quietly and intermittently carry on adding to the unauthorised structure until it slowly becomes a fait accompli, something already done and beyond alteration. Numerous warnings have been issued by the body corporate, but to no avail. What is the remedy of the body corporate, in other words the other owners in the complex ?
One thing one can try is to persuade the building inspector of your local authority to issue a cease and desist order in terms of their bylaws. This will cost the body corporate nothing and should have the desired effect, providing you can get your local authority to co-operate.
Another possibility is to apply for what is called a mandatory interdict that, if granted by the court, will consist of an order that the recalcitrant unitholder not only cease further construction but also dismantle what has already been constructed without due authority. A problem is that one needs to show prejudice and the lack of an alternative remedy in order to succeed in obtaining an interdict of this kind. In certain circumstances this could be difficult for the body corporate to show: the additional construction might be ugly but does it really prejudice anyone ?
The other alternative is to resort to arbitration in terms of Management Rule 71 under the Sectional Titles Act 95 of 1986. This has plusses and minuses. One plus is its relative speed when compared to the courts. One authority [Prof C G v d Merwe, author of Sectional Titles, Butterworths, looseleaf (not the English equivalent of Loslyf), updated to 28 February 2006, p 9-19] maintains that cost-effectiveness is another. I am not so sure about that. The state pays for the judge in the courts – the parties have to pay for the arbitrator in arbitration and this can also be expensive.
The learned author (we lawyers use these old-fashioned courtesies towards each other) also says another plus is that arbitration "offers better safeguards against procedural irregulations [sic – I presume he means 'irregularities'] by virtue of the provisions of the Arbitration Act 42 of 1965, that will apply to any arbitration proceedings in terms of the Sectional Titles Act".
What should also be considered is an amendment to the conduct rules imposing fines on unitholders who break those rules and the power to request an amount as security for future transgressions. This is a speedy and inexpensive remedy but the rule must provide built-in safeguards to ensure that it is not abused, eg an enquiry to establish the breach of the rules before the sanction is imposed.
In any event: a word of advice to potential sectional titles unit buyers – read the "management" and "conduct" rules first. That will tell you what kind of a situation you are moving into.
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